People v. Posey

Full title: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SCOTT POSEY, Defendant…

Court: California Court of Appeals, First District, Fourth Division

Date published: Jan 22, 2009

Facts

The defendant and his wife were married in 1992 and separated in 1995. It was the defendant’s first marriage at age 40. Liz was 16 years younger than the defendant, and the mother of two children from a previous marriage when she married the defendant. Liz had two additional children with the defendant.

The marriage was tumultuous. A neighbor heard loud arguments between them, and both the defendant and Liz telephoned the police on different occasions to accuse the other of domestic violence. The defendant telephoned the police three or five times. One of those calls resulted in Liz’s arrest: she had thrown a child’s plastic “sippy cup” at the defendant, and it struck his knee. The defendant claimed there had been more serious assaults, but the police never received any report of them. There was evidence of violence against Liz. Liz called the police to report domestic violence and told a friend that the defendant once forced Liz to have sex with him. One witness reported seeing the defendant push and shove his wife, and another saw a large bruise on Liz’s leg.

Several witnesses testified about the defendant’s hostile and bullying treatment of his wife. The defendant was a dentist, and his wife worked a short time in his dental office. The defendant’s office manager testified about an incident when she was in the back office with the defendant when Liz came to ask a question. Defendant told his wife to “shut up,” and when she protested that she did not want to shut up, he yelled at her to “shut the fuck up.” Liz started crying, and stayed alone in the back room upset and crying for “an hour or more.” A dental assistant described the defendant’s interactions with Liz as “toxic,” and testified that the defendant was “mean” to Liz and berated her in front of staff. Another employee of the defendant visited the couple at home and described a bad relationship in which the defendant yelled at Liz, was “controlling,” and treated his wife with disrespect.

Defendant and his wife were overheard at the office discussing divorce. Liz said she was thinking about filing for divorce and the defendant told her that he would “make her life a living hell if she didn’t let him be the one to file for the divorce.” The defendant filed for divorce and served the papers on Liz in September 1995. The defendant was angry about the divorce, according to one of his employees.

Multiple witnesses testified that Liz feared the defendant would kill her. Liz’s fear of the defendant was attested to by her divorce lawyer, her mother, and six friends. Defendant’s friend, Eric Clarke, testified at trial to a statement the defendant made years earlier, about Clarke’s divorce. When Clarke told defendant that Clarke’s wife made the divorce difficult and costly, the defendant said: “[I]f someone did that to me I would kill them.”

Issue

Decision

The defendant faults trial counsel for several additional reasons, all of them relating to matters previously discussed concerning the admission of evidence and the prosecutor’s argument to the jury. Our previous treatment of the matters makes a long discussion here unnecessary. As we have explained, much of the challenged evidence was properly admitted, and thus trial counsel’s lack of objection was not incompetent. Where an objection may have been warranted, the lack of objection was not prejudicial.

Nor do we fault the defense counsel for presenting evidence that Liz had a violent character, which permitted the prosecution to counter with evidence of the defendant’s violent character. (Evid. Code, § 1103, subd. (b).) As we discussed earlier, the defendant relied upon Liz’s supposed violent attack on him to explain her death. His account of the shooting depended upon Liz being volatile enough to try to kill her husband. The defendant’s prospect for exoneration was improved by substantiating the defendant’s police statement that Liz was a violent person, and thus it was a reasonable defense tactic to introduce evidence of Liz’s alleged erratic nature.

The trial judge, who was in the best position to determine the competency of trial counsel, stated that the defendant’s trial attorneys “were very, very good trial lawyers” and “two of the very best trial lawyers” the judge had seen. We find no basis for departing from that assessment and declaring the trial counsel incompetent.

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